We, the undersigned U.S. and Canadian nongovernmental organizations
concerned about the rights of
refugees and asylum seekers, are writing to express our
firm opposition to the draft "safe third country"
agreement. The draft agreement between the governments
of the United States and Canada for cooperation in
the examination of refugee status claims from nationals
of third countries is overly broad and its exceptions
unduly limited. It will create a whole new bureaucracy
that is unnecessary, inefficient, and unfair to refugees
and their families.

While there are real questions about the lawfulness of
such an agreement under international law, we also
question the need for such an agreement at all, since
there does not currently appear to be a problem with
persons seeking asylum in both the United States and Canada.
The stated reason for the agreement in the
December 3, 2001 Joint Statement on Border Security was
"to limit the access of asylum seekers, under
appropriate circumstances, to the system of only one of
the two countries." Yet no evidence has been
presented to suggest that the relatively few persons who
lodge claims in both countries do so with the
intention of abusing either system.

Anecdotal evidence overwhelmingly indicates that most people
who apply for asylum in the United States and
later apply in Canada did so because, while always intending
to file a claim in Canada, they were apprehended
in the United States and applied only to avoid deportation
and obtain release from detention. Once released,
they ordinarily do not show up for removal hearings, but
rather travel to Canada, showing their intention not to
seek asylum in both countries, but only in Canada. Immigration
officials on both sides of the border recognize
this reality and, in practice, work with local NGOs to
facilitate persons attempting to cross the U.S.-Canadian
border to claim asylum. The system currently works with
minimal coercion or conflict and, in fact, is helpful in
addressing any security concerns, because it ensures that
we can identify and track persons crossing the
border.

The draft agreement rests on the idea that, in general,
the asylum claim must be filed in the country of last
presence, and that officials will examine certain exceptions
to that rule, based on family ties and other factors.
We believe that this will create additional bureaucracy,
long delays, increased costs, and disputes between the
US and Canada that currently do not exist. In effect,
it will force an estimated 15,000 persons per year to file
asylum claims in the United States despite their efforts
to seek asylum in Canada, adding a large, unwilling
number of claimants into the U.S. caseload.

Within a closed system of two states, a far simpler and
fairer system would be to allow the third-country
nationals themselves to choose in which country to lodge
their asylum claims. This approach would conform
with UNHCR Executive Committee Conclusion 15, which states
that "the intentions of the asylum seeker
should as far as possible be taken into account" with
respect to the choice of country where asylum is claimed,
and that "asylum should not be refused solely on the ground
that it could be sought from another state." The
only exception contemplated is for persons with a "close
link" in another country where, if it appears fair and
reasonable, a person may be called upon to request asylum.

The "country of last presence" does not establish such
a close link. On the contrary, it could be quite
transitory and inconsequential. In contrast, existing
law in the United States only renders ineligible for asylum
persons who have been "firmly resettled" in another country.
(See Immigration and Nationality Act
§208(b)(2)(A)(6).) Canadian law deems a claim ineligible
if the claimant has been recognized as a Convention
refugee in another country and "can be sent or returned
to that country" (See Immigration and Refugee
Protection Act, §101(1)(d).) In both cases, this
suggests conformity with the international principle of a "close
link," and certainly does not suggest anything as ephemeral
as mere presence in another country as a ground
for barring examination of an asylum claim.

Refugees have many reasons for seeking asylum in one country
rather than another. Often they wish to join
existing communities of support that will help them to
heal, recover, and integrate into a new society. Family
exceptions in the draft agreement do not necessarily capture
such ties. Also, refugees may choose one country
over another because one is more receptive to asylum seekers
than the other. In several respects, U.S.
treatment of asylum seekers does not meet minimum standards.
The United States bars asylum applicants from
working for six months after applying for asylum, does
not provide legal assistance for applicants that is
usually available to them in Canada, has bars to asylum
that do not exist in Canada, such as filing deadlines,
and is more likely to detain than Canada. The United States
also more narrowly interprets refugee law on issues
such as gender-based claims, raising the prospect that
the United States might return to persecution a claimant
whom Canada would have protected.

Not only would this agreement, as drafted, lead to increased
inefficiencies, burdens, and delays. It would also
undermine orderly and secure procedures at the border.
Currently, those wishing to claim refugee status
present themselves in an orderly fashion at the border
for examination by Canadian officials. When that door is
closed, desperate refugees will try to get across irregularly,
putting themselves in the hands of traffickers and
becoming victimized yet again.

Such an agreement would also provide a harmful example
for other countries lacking the resources and legal
traditions of Canada and the United States. It sends a
message that could encourage other countries to enter
into so-called safe third-country agreements that would
more likely shirk and shift burdens than share them.
We urge that the agreement be abandoned.